dismissed EB-2 Case: Electrical Engineering

(b)(6)
DATE: NOV 2 7 2013 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citi zenship and Immigr ation Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigr ant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigrati on 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER : 
INSTRUCTIONS: 
Enclosed please find the deci sion of the Administrative Appeal s Office (AAO) in your cas e. 
This is a non-prec edent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied curr ent law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form l-290B) 
within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank youi-
jtt~ ;£-
for----
Ron Rosenberg 
Chief, Administr ative Appeals Office 
www. uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and · 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
On Form I-140, Immigrant Petition for Alien Worker, the petitioner describes its business as ' 
.J1 It seeks to employ the beneficiary permanently in the United States as an 
"electrical engineer technician." 2 The petitioner requests classification of the beneficiary as an 
advanced degree professional pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2). 
As required by statute, the petition is accompanied by ETA Form 9089, Application for Permanent 
Employment Certification (labor certification), approved by the United States Department of Labor 
(DOL). The director determined that the petitioner had not established that it had the continuing 
ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. 
The director also determined that the labor certification does not require a member of the professions 
holding an advanced degree. The director denied the petition accordingly on April 29, 2013. 
At issue in this case is whether: (1) the position offered, as described on the labor certification, 
qualifies for the classification sought; (2) whether the beneficiary possesses an advanced degree as 
required for classification as a professional holding an advanced degree; and (3) whether the 
petitioner can establish its ability to pay the proffered wage for the position offered from the priority 
date onward. 
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. The 
AAO conducts appellate review on a de novo basis. 3 The AAO considers all pertinent evidence in 
the record, including new evidence properly submitted upon appeal.
4 
A petition that fails to comply 
1 
This statement in Part 5, Item 2 on Form 1-140 appears to be in error. The petitioner's website 
states that it is a "residential Audio /Video, Lighting Control, and Home Automation" company . See 
(accessed November 21, 2013). 
2 Form 1-140, Part 6, Item 1 lists the job title as "Electrical Engineering." A letter from the 
petitioner's Chief Financial Officer, dated July 10, 2012, states that the petitioner intends to employ 
the beneficiary "in the position of Electrical Engineering." The position offered, as certified by the 
U.S. Department of Labor and as stated in Part H.3 of ETA Form 9089, is that of an "Electrical 
Engineering Technician. " 
3 See 5 U .S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the 
powers which it would have in making the initial decision except as it may limit the issues on notice 
or by rule."); see also Janka v. U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). 
The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltane v. 
DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
4 
The submission of additional evidence on appeal is allowed by the instructions to Form I-290B, 
Notice of Appeal or Motion, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(l). 
The record in the instant case provides no reason to preclude consideration of any of the documents 
newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
(b)(6)
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Page 3 
with the technical requirements of the law may be denied by the AAO even if the director does not 
identify all of the grounds for denial in the initial decision .5 
Successor-In-Interest 
As required by statute, the petition is accompanied by a labor certific ation, approved by DOL. 6 The 
priority date of the petition is March 10, 2008. 7 The ern layer who initially filed the labor 
certification application was with the Federal Employer 
Identification Number (FEIN) of The petitioner , (FEIN 
, asserts that it merged with the labor certification employer on December 2, 2009, and 
is a successor-in-interest to the labor certification employer. The petitioner submitted a copy of a 
Certificate of Merger showing that on that certificate was filed with the State of 
New York , Department of State, under Section 904 of the Business Corporation Law in the State of 
New York. The certificate states that the surviving corporation of the merger is 
, the petitioner. 
users has not issued regulations governing immigrant visa petitions filed by a successor-in-interest 
employer. Instead, such matters are adjudicated in accordance with Matter of Dial Auto Repair 
Shop, Inc., 19 l&N Dec. 481 (Comrn ' r 1986) ("Matter of Dial Auto") a binding, legacy Immigration 
and Naturalization Service (INS) decision that was designated as a precedent by the Commissioner 
in 1986. The regulation at 8 C.F.R. § 103.3(c) provides that precedent decisions are binding on all 
immigration officers in the administration of the Act. 
Merger and acquisition transactions, in which the interests of two or more corporations become 
unified, may be arranged into four general groups. The first group includes "consolidations " that 
occur when two or more corporations are united to create one new corporation. The second group 
includes "mergers ," consisting of a transaction in which one of the constituent companies remains in 
being, absorbing the other constituent corporation. The third group includes "reorganizations" that 
occur when the new corporation is the reincarnation or reorganization of one previously existing. 
The fourth group includes transactions in which a corporation, although continuing to exist as a 
"shell" legal entity, is in fact merged into another through the acquisition of its assets and business 
operations. 19 Am. Jur. 2d Corporations § 2165 (2010). 
A true merger or consolidation of a business organization into another will give rise to a succ essor­
in-interest relationship becaus e the assets and obligations are transferred by operation of law. 
However, a mere transfer of assets, even one that takes up a predecessor's business activities , does 
not necessarily create a successor-in-interest. See Holland v. Williams Mountain Coal Co., 496 F.3d 
670 , 672 (D.C. Cir. 2007). An asset transaction occurs when one business organization sells 
property, such as real estate, machinery, or intellectual property, to another business organization. 
5 See Spenc er Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001) , affd, 
345 F.3d 683 (9th Cir. 2003). 
6 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2) . 
7 The priority date is the date the DOL accepted the labor certification for proces sing. See 8 C.F.R. 
§ 204.5(d). 
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The purchase of assets from a predecessor will only result in a successor-in-interest relationship if 
the parties agree to the transfer and assumption of the essential rights and obligations of the 
predecessor necessary to carry on the business. 8 See generally 19 Am. Jur. 2d Corporations § 2170 
(2010). 
A petitioner may establish a valid successor relationship for immigration purposes if it satisfies three 
conditions. First, the petitioning successor must fully describe and document the transaction 
transferring ownership of all, or a relevant part of, the predecessor employer. Second, the 
petitioning successor must demonstrate that the job opportunity is the same as originally offered on 
the labor certification. Third, the petitioning successor must prove by a preponderance of the 
evidence that it is eligible for the immigrant visa in all respects. Matter of Dial Auto Repair Shop, 
Inc., 19 I&N Dec. 481 (Comm'r 1986). 
The record does not document the terms of the merger, and provides no explanation by which to 
determine which type of merger, if any, the petitioner's purported merger parallels. The Certificate 
of Merger, Fifth part, indicates only that a separate "agreement and plan of merger setting for the 
terms and conditions of the merger of said corporations" exists. However, this "agreement and plan" 
is not in the record. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg' I Comm'r 
1972)). 
Further, the New York State Division of Corporations indicates that the labor certification employer, 
_ _ was in existence until its dissolution on January 25, 2012, which 
is several years after the purported merger in December 2009. 9 The continued existence of the labor 
certification entity after the time of the purported merger, and the lack of documentation explaining 
the terms and conditions of the merger, cast doubt on the claimed merger and fail to establish 
whether the petitioner is a successor-in-interest to the labor certification employer. 10 Matter of Ho, 
19 I&N Dec. 582, 591 (BIA 1988), states: 
8 The mere assumption of immigration obligations, or the transfer of immigration benefits derived 
from approved or pending immigration petitions or applications, will not give rise to a successor-in­
interest relationship unless the transfer results from the bona fide acquisition of the essential rights 
and obligations of the predecessor necessary to carry on the business. See 19 Am. Jur. 2d 
Corporations§ 2170; see also 20 C.F.R. § 656.12(a). 
9 See New York Department of State, Division of Corporations, Corporations, State Records, and 
UCC, http://www.dos.ny.gov/corps/bus_entity_search.html (accessed November 21, 2013). 
10 An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
(b)(6)
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NON-PRECEDENT DECISION 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered m 
support of the visa petition. 
In any further filings, the petitioner should provide evidence of its purported merger terms, including 
the "agreement and plan of merger setting for the terms and conditions of the merger of said 
corporations," as identified in its Certificate of Merger, as well as evidence that the labor 
certification entity ceased to exist after the merger. Matter of Ho, 19 I&N at 591-592 , states: 
It is incumbent on the petitioner to resolve any inconsistencies in the record by 
independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth , in 
fact, lies, will not suffice. 
Even if the petitioner is able to document that it is a successor-in-interest to the labor certification 
employer, the requirements for the position offered, as set forth on the approved labor certification, 
have not been shown to meet the regulatory requirements for the classification sought. 
Minimum Requirements of the Position Offered 
Part H of the labor certification states that the offered position has the following mtmmum 
requirements: 
Education: Bachelor 's Degree in Electrical Engineering. 
Training: None required. 
Experience in the job offered: 12 months. 
Alternate field of study: None accepted. 
Alternate combination of education and experience: None accepted. 
Foreign educational equivalent: Not Accepted. 
Experience in an alternate occupation: None accepted. 
H.4. 
H.5. 
H.6. 
H.7. 
H.S. 
H.9. 
H.lO. 
H.14. Specific skills or other requirements: "Knowledge of computer programmmg such as 
AutoCAD." 
Part J of the labor certification states that the beneficiary possesses a bachelor 's degree in Electrical 
Engineering from the _ New York, com leted in 2006. The record 
contains a copy of the beneficiary's diploma from the issued in 2006. 
In addition to the beneficiary's employment with the labor certification employer , Part K of the labor 
certification states that the beneficiary possesses the following employment experience: 
• As a part-time Senior Design Analyst with 
January 2, 2005, until June 1, 2005. 
• As a part-time System Control Designer with 
from August 1, 2004, until December 31, 2004. 
New York from 
New York 
(b)(6)
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The beneficiary's part-time employment with the _ appears to have occurred 
while the beneficiary was enrolled at that university and while he pursued his bachelor's degree. The 
beneficiary 's employment with the labor certification employer as an "Electrical Engineer Techn " 
began on July 5, 2005 , prior to the completion of his bachelor's degree in 2006. 
The Roles of the DOL and USCIS in the Immigrant Visa Process 
Prior to analyzing the minimum requirements for the position offered, it is important to discuss the 
respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the 
employment-based immigrant visa process. As noted above, the labor certification in this matter is 
certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, 
which provides: 
Any alien who seeks to enter the United States for the purpose of performing skilled or 
unskilled labor is inadmissible, unless the Secretary of Labor has determined and 
certified to the Secretary of State and the Attorney General that-
(I) there are not sufficient workers who are able, willing, qualified (or equally 
qualified in the case of an alien described in clause (ii)) and available at the time 
of application for a visa and admission to the United States and at the place 
where the alien is to perform such skilled or unskilled labor, and 
(II) the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing 
these duties under 20 C.P.R. § 656, involve a determination as to whether the position and the alien are 
qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit 
courts: 
There is no doubt that the authority to make preference classification decisions rests 
with INS. The language of section 204 cannot be read otherwise. See Castaneda­
Gonzalez v. INS, 564 F.2d 417 , 429 (D.C. Cir. 1977). In turn , DOL has the authority 
to make the two determinations listed in section 212(a)(14). 11 ld. at 423. The 
necessary result of these two grants of authority is that section 212(a)(14) 
determinations are not subject to review by INS absent fraud or willful 
misrepresentation, but all matters relating to preference classification eligibility not 
expressly delegated to DOL remain within INS ' authority. 
Given the language of the Act, the totality of the legislative history, and the agencies ' 
own interpretations of their duties under the Act, we must conclude that Congress did 
11 
Based on revisions to the Act, the current citation is section 212(a)(5)(A). 
(b)(6)
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NON-PRECEDENT DECISION 
not intend DOL to have primary authority to make any determinations other than the 
two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it ·is for 
the purpose of "matching" them with those of corresponding United States workers so 
that it will then be "in a position to meet the requirement of the law," namely the 
section 212( a )(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d 
at 1008, the Ninth Circuit stated: 
[I]t appears that the DOL is responsible only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domestic labor market. It does not appear that the DOL's role extends to determining 
if the alien is qualified for the job for which he seeks sixth preference status. That 
determination appears to be delegated to the INS under section 204(b ), 8 U .S.C. 
§ 1154(b ), as one of the determinations incident to the INS's decision whether the 
alien is entitled to sixth preference status. 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
from the DOL that stated the following: 
The labor certification made by the Secretary of Labor . . . pursuant to section 
212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing , 
qualified, and available United States workers for the job offered to the alien, and 
whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) !d. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: 
The Department of Labor (DOL) must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not 
adversely affect the wages and working conditions of similarly employed domestic 
workers. !d. § 212(a)(14) , 8 U.S.C. § 1182(a)(14). The INS then makes its own 
determination of the alien's entitlement to sixth preference status. !d. § 204(b ), 
8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon , 699 F.2d 1006, 
1008 9th Cir.1983) . 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). 
(b)(6)
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Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers 
available to perform the offered position, and whether the employment of the beneficiary will 
adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if 
the beneficiary qualifies for the offered position, and whether the offered position and the 
beneficiary are eligible for the requested employment-based immigrant visa classification. 
Eligibility for the Classification Sought 
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of 
the professions holding advanced degrees. See also 8 C.F.R. § 204.5(k)(1). 
The regulation at 8 C.F.R. § 204.5(k)(2) defines the terms "advanced degree " and "profession. " An 
"advanced degree" is defined as: 
[A]ny United States academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. A United States baccalaureate degree or a foreign 
equivalent degree followed by at least five years of progressive experience in the 
specialty shall be considered · the equivalent of a master 's degree. If a doctoral degree 
is customarily required by the specialty, the alien must have a United States doctorate 
or a foreign equivalent degree. 
A "profession" is defined as "one of the occupations listed in section 101( a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation. " The occupations listed at section 10l(a)(32) of 
the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges , academies, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional 
must be accompanied by: 
(A) An official academic record showing that the alien has a United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree , and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
In addition, the job offer portion of the labor certification must require a professional holding an 
advanced degree. See 8 C.F.R. § 204.5(k)(4)(i). 
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of 
the professions holding an advanced degree, and that the offered position requires, at a minimum , a 
professional holding an advanced degree. Further, an "advanced degree " is a U.S. academic or 
(b)(6)
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Page 9 
professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a 
foreign equivalent degree) followed by at least five years of progressive experience in the specialty . 
The Position Offered Requires Less Than a Professional Holding an Advanced Degree 
As stated above, the plain terms of the labor certification indicate that the position offered requires: (1) a 
bachelor 's degree in Electrical Engineering; and (2) twelve months of experience in the position 
offered. As defined by regulation, a bachelor degree alone is not an advanced degree. In order for a 
position, which requires only a baccalaureate , to meet the regulatory requirements of the classification 
sought herein, the terms of the labor certification must also require, at a minimum, five years of 
progressive experience in the specialty. 8 C.F.R . §§ 204.5(k)(2) , (3)(i). However, the labor 
certification at issue requires a bachelor's degree and only 12 months of experience in the position 
offered. 
As an individual can qualify for the offered position with less than a degree above a baccalaureate, or a 
baccalaureate followed by five years of progressive experience in the specialty, the petition does not 
qualify for advanced degree professional classification. 
In the brief accompanying this appeal, counsel asserts that "USCIS is incorrect because a labor 
certification or ETA Form 9089 is not always required since it can be waivered [sic] under a Labor 
Certification National Interest Waiver (NIW). It was error for the USCIS not to consider an NIW." 12 It 
appears that the petitioner asserts, for the first time on appeal , that the beneficiary need not satisfy 
the education or experience requirements of the included labor certification as the beneficiary was 
12 The petitioner 's brief does not assert that the beneficiary is an alien of extraordinary ability, or that 
beneficiary's work is in the national interest. On February 19, 2013, the director of the Texas 
Service Center issued a Notice of Intent to Deny (NOID) stating that the petitioner had failed to 
establish that the beneficiary met the experience and education requirements of the labor 
certification or the classification sought. The petitioner responded to the NOID but did not assert 
that the labor certification was unnecessary as the petitioner was entitled to a national interest 
waiver. The purpose of the NOID was to notify the petitioner of deficiencies in the record and to 
give the petitioner an opportunity to overcome those deficiencies through the submission of 
additional evidence. The petitioner did not at that time assert that the petitioner was entitled to a 
national interest waiver or present any evidence in that regard. As in the present matter, where a 
petitioner has been put onnotice of a deficiency in the evidence and has been given an opportunity 
to respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal. 
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 
1988). The petitioner 's assertion:, for the first time on appeal , that the petitioner is entitled to a 
national interest waiver , need not be considered. Even if the national interest assertion were 
considered on appeal , it would not be granted as the petitioner has submitted no evidence to establish 
that the petitioner is entitled to a national interest waiver in this instance. If the petitioner had 
wanted to submit evidence relative to a claim of national interest, it should have submitted such 
evidence in response to the director 's NOID. Under the circumstances, the AAO need not, and does 
not, consider the petitioner's unsupported assertion that the petitioner is entitled to a national interest 
waiver on appeal. 
(b)(6)
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eligible for a national interest waiver 13 and USCIS erred m not considering the waiver m this 
instance. 
The Form I-140, Immigrant Petition for Alien Worker, filed by the petitioner on September 28, 2012, 
and signed by the petitioner's Chief Financial Officer, and counsel, requests classification of the 
beneficiary as a "member of the professions holding an advanced degree or an alien of exceptional 
ability (who is NOT seeking a National Interest Waiver)," by checking box "d" in Part 2 of that form. 
(capitalization in original). The same form provides option "i" for an "alien applying for a National 
Interest Waiver (who IS a member of the professions holding an advanced degree or an alien of 
exceptional ability)." (capitalization and emphasis in original). As the petitioner selected option "d," a 
labor certification is required by statute and regulation. See Section 203(b )(2)(B) of the Act 
(establishing the waiver of a job offer)); 8 C.F.R. § 204.5(k)( 4)(i) (labor certification requirement). 
There is no provision in statute or regulation that compels USCIS to readjudicate a petition under a 
different preference classification once the director has rendered a decision. A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm 'r 1988). 
In summary, the offered position, as described on the labor certification, does not require an 
advanced degree. Therefore, the petition cannot be approved for a member of the professions 
holding an advanced degree under section 203(b )(2) of the Act. The AAO affirms the director 's 
decision that the labor certification does not require a member of the professions holding an 
advanced degree. 
The Beneficiary Possessed No Qualifying Experience Prior to the Priority Date 
The record on appeal documents that, even if the plain language of the labor certification had met the 
requirements for classification as an advanced degree professional, the petitioner failed to establish that 
the beneficiary possessed the experience required for the position offered. The petitioner must 
demonstrate that, on the priority date, the beneficiary had the qualifications stated on its labor 
certification application, as certified by the DOL and submitted with the instant petition. Matter of 
Wing 's Tea House , 16 I&N Dec. 158 (Acting Reg'l Comm ' r 1977). As indicated above, the experience 
13 Section 203(b)(2) of the Act provides for "aliens who are members of the professions holding 
advanced degrees or aliens of exceptional ability." Generally, visas in this employment preference 
classification are available to qualified immigrants "whose services in the sciences, arts, professions , or 
business are sought by an employer in the United States." Section 203(b)(2)(A) of the Act. A waiver of 
the job offer from an employer is provided for in Section 203(b )(2)(B)(i) when it is in "the national 
interest." Matter of New York State Dep 't. ofTransp., 22 I&N Dec. 215 , 217-18 (Comm'r 1998), has 
set forth several factors that USCIS must consider when evaluating a request for a national interest 
waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. !d. at 217. Next, the petitioner must show that the proposed benefit will be national in 
scope. !d. Finally, the petition er seeking the waiver must establish that the alien will serve the national 
interest to a substantially greater degree than would an available U.S. worker having the same minimum 
qualifications. !d. at 217-18. 
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Page 11 
required on the labor certification is 12 months in the position offered, Electrical Engineering 
Technician. The beneficiary commenced employment with the petitioner on July 5, 2005 , in the 
position of Electrical Engineer Technician. The priority date for the instant petition is March 10, 2008. 
As indicated above, the labor certification states that the beneficiary held two positions prior to 
commencing em loyment with the petitioner. The beneficiary held two part-time positions with his 
university, NY, from August 2004 to December 2004 ("System 
Control Designer"), and from January 2005 to June 2005 ("Senior Design Analyst"). No other 
experience is provided on the labor certification. 
Representations made on the certified ETA Form 9089, which is signed by both the petitioner and the 
beneficiary under penalty of perjury , indicate that the beneficiary's experience with the petitioner or 
expenence in an alternate occupation cannot be used to qualify the beneficiary for the certified 
position. 14 Specifically, the petitioner indicates in question H.8 that an alternate combination of 
14 c 20 .F.R. § 656.17 states: 
(h) Job duties and requirements. (1) The job opportunity 's requirements, unless 
adequately documented as arising from business necessity, must be those normally 
required for the occupation 
(4)(i) Alternative experience requirements must be substantially equivalent to the 
primary requirements of the job opportunity for which certification is sought; and 
(i) If the alien beneficiary already is employed by the employer , and the alien 
does not meet the primary job requirements and only potentially qualifies for 
the job by virtue of the employer 's alternative requirements , certification will 
be denied unless the application states that any suitable combination of 
education, training, or experience is acceptable. 
(i) Actual minimum requirements. DOL will evaluate the employer 's actual minimum 
requirements in accordance with this paragraph (i). 
(1) The job requirements, as described, must represent the employer 's actual 
minimum requirements for the job opportunity. 
(2) The employer must not have hired workers with less training or experience for 
jobs substantially comparable to that involved in the job opportunity. 
(3) If the alien beneficiary already is employed by the employer, in considering 
whether the job requirements represent the employer's actual minimums, DOL will 
review the training and experience possessed by the alien beneficiary at the time of 
hiring by the employer, including as a contract employee. The employer cannot 
require domestic worker applicants to possess training and/or experience beyond what 
the alien possessed at the time of hire unless: 
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Page 12 
education and experience is not acceptable, and in question H.10 that experience in an alternate 
occupation is not acceptable . Further, the petitioner indicates that questions 1.19 and 1.20, which ask 
about experience in an alternate occupation, are not applicable. 
In response to question 1.21, which asks, "Did the alien gain any of the qualifying experience with the 
employer in a position substantially comparable to the job opportunity requested?," the petitioner 
answered "no." The petitioner specifically indicates in response to question H.6 that 12 months of 
experience in the job offered is required and in response to question H.10 that experience in an alternate 
occupation is not acceptable. In general , if the answer to question 1.21 is no, then the experience with 
the employer may be used by the beneficiary to qualify for the proffered position if the position was 
not substantially comparable 15 and the terms of the ETA Form 9089 at H.10 provide that applicants 
can qualify through an alternate occupation. Here, the beneficiary indicates in response to question 
K.l. that his position with the petitioner was as an "Electrical Engineer Techn, " and the job duties 
(i) The alien gained the experience while working for the employer , including 
as a contract employee , in a position not substantially comparable to the 
position for which certification is being sought, or 
(ii) The employer can demonstrate that it is no longer feasible to train a 
worker to qualify for the position. 
( 4) In evaluating whether the alien beneficiary satisfies the employer's actual 
minimum requirements, DOL will not consider any education or training obtained by 
the alien beneficiary at the employer's expense unless the employer offers similar 
training to domestic worker applicants. 
(5) For purposes of this paragraph (i): 
(i) The term "employer" means an entity with the same Federal Employer 
Identification Number (FEIN), provided it meets the definition of an employer 
at§ 656.3. 
(ii) A "substantially comparable" job or position means a job or position 
requiring performance of the same job duties more than 50 percent of the 
time. This requirement can be documented by furnishing position 
descriptions , the percentage of time spent on the various duties, organization 
charts, and payroll records. 
15 A definition of "substantially comparable " is found at 20 C.P.R. § 656.17: 
5) For purposes of this paragraph (i): 
(ii) A "substantially comparable " job or positiOn means a job or positiOn 
requiring performance of the same job duties more than 50 percent of the 
time. This requirement can be documented by furnishing position 
descriptions , the percentage of time spent on the various duties , organization 
charts, and payroll records. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
are the same duties as the position offered. Therefore, the experience gained with the petitioner was 
in the position offered and is substantially comparable as the beneficiary was performing the same 
job duties more than 50 percent of the time. Therefore, according to DOL regulations, the petitioner 
cannot rely on this experience for the beneficiary to qualify for the proffered position. Additionally, 
as the terms of the labor certification supporting the instant 1-140 petition do not permit 
consideration of experience in an alternate occupation, the beneficiary's experience with Polytechnic 
University may not be used to qualify the beneficiary for the proffered position. 
The petitioner failed to establish that the beneficiary met the minimum requirements of the offered 
position set forth on the labor certification as of the priority date. Therefore, the beneficiary does not 
qualify for classification as a professional with an advanced degree or skilled worker under section 
203(b )(2) of the Act. 
Bona Fide Job Offer 
A labor certification for a specific job offer is valid only for the particular job opportunity, the alien 
for whom the certification was granted, and for the area of intended employment stated on the labor 
certification. 20 C.F.R. § 656.30(c)(2). The record suggests the petitioner intends to employ the 
beneficiary as a Computer Assisted Drafting Department Supervisor (CADDS), outside the terms of the 
labor certification. See Sunoco Energy Development Company, 17 I&N Dec. 283 (Reg'l Comm'r 
1979). As discussed above, the position offered is that of an Electrical Engineering Technician. 
However, the beneficiary's resume indicates that the petitioner has employed the beneficiary as a 
CADDS from December 2009 onward. A letter from the petitioner's Director of Engineering, dated 
September 25, 2012, states that the beneficiary "currently holds the title of the Computer Assisted 
Drafting (CAD) Supervisor." The letter indicates that the beneficiary supervises a department of at least 
three employees, and provides a detailed description of his employment which varies in scope and 
complexity from the job duties described on the labor certification for the position offered. The instant 
petition was filed with USCIS on September 28, 2012, after the petitioner began employing the 
beneficiary as a supervisor. This casts doubt on whether the petitioner continues to intend to employ the 
beneficiary within the terms of the labor certification. See Matter of Ho, 19 I&N at 591. If the 
petitioner does not intend to employ the beneficiary in the position offered, the instant appeal would be 
moot. The record does not contain independent, objective evidence that the petitioner intends to employ 
the beneficiary under the terms of the labor certification. !d. at 591-592. Therefore, the petition must 
also be dismissed if the petitioner intends to employ the beneficiary in a position other than the position 
offered on the labor certification. 
Ability to Pay 
The director also determined that the petitioner had not established that it had the continuing ability 
to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The 
regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1t1on filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
(b)(6)
Page 14 
NON-PRECEDENT DECISION 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns , or audited financial statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, which is the date the ETA Form 9089 , Application for Permanent Employment 
Certification , was accepted for processing by any office within the employment system of the DOL. 
See 8 C.F.R. § 204.5(d). As discussed above, if the petitioner is able to demonstrate that it is a 
successor-in-interest to the employer who initially filed the labor certification, I 
the petitioner must demonstrate both its and the labor certification employer's ability 
to pay the beneficiary's proffered wage during the relevant time periods . In order to establish 
eligibility for the immigrant visa in all respects, the petitioner must support its claim with all 
necessary evidence , including evidence of ability to pay. The petitioning successor must prove the 
predecessor 's ability to pay the proffered wage as of the priority date and until the date of transfer of 
ownership to the successor. In addition, the petitioner must establish the successor 's ability to pay 
the proffered wage in accordance from the date of transfer of ownership forward. 8 C.F.R. § 
204.5(g)(2); see also Malter of Dial Auto, 19 I&N Dec. at 482. 
Here, the ETA Form 9089 was accepted on October 3, 2008. The proffered wage as stated on the 
ETA Form 9089 is $49,525 per year. 
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. 
On the petition, the petitioner claimed to have been established in 1993 and to currently employ 
seven workers. According to the tax returns in the record, the petitioner 's fiscal year is based on a 
fiscal year which runs from October 1 to September 30. On the ETA Form 9089, signed by the 
beneficiary on January 11, 2011, the beneficiary claimed to worked for the labor certification 
employer from July 5, 2005. A letter from the former sole shareholder of the labor certification 
employer states that the beneficiary worked for labor certification employer from July 5, 2005 , until 
its merger with the petitioner on December 2, 2009. A letter, dated July 10, 2012, from the Chief 
Financial Officer (CFO) of the petitioner states that it has continually employed the petitioner since 
December 14, 2009. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 
an ETA Form 9089 labor certification application establishes a priority date for any immigrant petition 
later based on the ETA Form 9089, the petitioner must establish that the job offer was realistic as of the 
priority date and that the offer remained realistic for each year thereafter, until the beneficiary obtains 
lawful permanent residence. The petitioner 's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
Comm ' r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USCIS 
requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered 
wages, although the totality of the circumstances affecting the petitioning business will be considered if 
the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm 'r 
1967). 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
In determining the petitioner's ability to pay the proffered wage 16 during a given period, US CIS will 
first examine whether the petitioner, and 
the labor certification employer, employed and paid the 
beneficiary during the relevant periods of time. If the petitioner , or labor certification employer, 
establishes by documentary evidence that it employed the benefici ary at a salary equal to or greater 
than the proffered wage, the evidence may be considered prima facie proof of the petitioner 's ability 
to pay the proffered wage. In the instant case, the petitioner has not established that the labor 
certification employer paid the beneficiary the full proffered wage from the priority date until its 
merger into the petitioner. The petitioner submitted Internal Revenue Service (IRS) Forms W-2 
showing wages paid to the beneficiary by the initial filer as follows: 
• 2008 - $54,274.08 
• 2009- No evidence of wages paid to the beneficiary by the labor certification employer 17 
If the petitioner were able to establish that it is a successor-in-interest to th e labor certification 
employer, the 2008 W -2 form may show the ability to pay the proffered wage in that year based on 
wages paid to the beneficiary by the labor certification employer. 
The petitioner submitted W-2 forms showing wages paid by it to the beneficiary as follows: 
• 2009 - $2,001.20 
• 2010- $69 ,769.31 
• 2011 - $69,663.93 
• 2012- $65,702.54 
The petitioner also submitted pay stubs showing wages paid to the beneficiary through February 17, 
2013 of $10,509.21. The pay stubs show that the beneficiary is paid a gross bi-weekly salary of 
$2,627.32, which would yield an annual wage of $68,310.32. 
Based on the foregoing, the W-2 Forms may show the ability to pay the proffered wage in years 
2008 , 2010 , 2011 and 2012 . The W-2 Form submitted for 2009 shows wages paid to the beneficiar y 
by the petitioner of only $2,001.20. It is noted, however, that the beneficiary was not employed by 
16 The labor certification employer employed the beneficiary from the priority date until its merger 
with the petitioner on December 2, 2009. It must, therefore , be establi shed that the labor 
certification employer had the ability to pay the proffered wage from the priority date until 
December 2, 2009. The petitioner must establish its ability to pay the proffered wage from 
December 2, 2009 , onward . 
17 The record contains a W -2 Form which shows wages paid to the beneficiary b 
(FEIN _. The record does not establish that this entity is in any way 
related to the labor certification employer or the petitioner. Those wages, therefore, will not be 
considered in determining the ability to pay the proffered wage by either the initial filer or the 
petitioner. See Sitar v. Ash croft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) ("nothing in the 
governing regulation , 8 C.F .R. § 204.5, permits [USCIS] to consider the financial resources of 
individuals or entities who have no legal obligation to pay the wage ."). 
(b)(6)
NON-PRECEDENT DECISION 
Page 16 
the petitioner until on or about December 9, 2009, the date of the petitioner's merger with the labor 
certification employer. However, the petitioner provided no evidence of any wages paid by the labor 
certification employer during 2009. 
If the petitioner (or initial filer in this instance until the date of merger) does not establish that it 
employed and paid the beneficiary an amount at least equal to the proffered wage during that period, 
USCIS will next examine the net income figure reflected on the petitioner's federal income tax 
return, without consideration of depreciation or other expenses. River Street Donuts, LLC v. 
Napolitano, 558 F.3d 111 (1
51 
eir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. 
Mich. 2010), ajfd, No. 10-1517 (6th eir. filed Nov. 10, 2011). Reliance on federal income tax 
returns as a basis for determining a petitioner's ability to pay the proffered wage is well established 
by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th eir. 1984)); see also Chi­
Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 
623 F. Supp. 1080 (S.D.N.Y. 1985); Vbeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 
F.2d 571 (7th eir. 1983). Reliance on the petitioner's gross receipts and wage expense is misplaced. 
Showing that the petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly, 
showing that the petitioner paid wages in excess of the proffered wage is insufficient. 
In K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and 
Naturalization Service, now USers, had properly relied on the petitioner 's net income figure, as 
stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. 
The court specifically rejected the argument that USeiS should have considered income before 
expenses were paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 
(gross profits overstate an employer's ability to pay because it ignores other necessary expenses). 
With respect to depreciation, the court in River Street Donuts noted: 
The AAO recognized that a depreciation deduction is a systematic allocation of the 
cost of a tangible long-term asset and does not represent a specific cash expenditure 
during the year claimed. Furthermore, the AAO indicated that the allocation of the 
depreciation of a long-term asset could be spread out over the years or concentrated 
into a few depending on the petitioner 's choice of accounting and depreciation 
methods. Nonetheless, the AAO explained that depreciation represents an actual cost 
of doing business, which could represent either the diminution in value of buildings 
and equipment or the accumulation of funds necessary to replace perishable 
equipment and buildings. Accordingly, the AAO stressed that even though amounts 
deducted for depreciation do not represent current use of cash, neither does it 
represent amounts available to pay wages. 
We find that the AAO has a rational explanation for its policy of not adding 
depreciation back to net income. Namely, that the amount spent on a long term 
tangible asset is a "real" expense. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
River Street Donuts at 118. "[USCIS] and judicial precedent support the use of tax returns and the 
net income figures in determining petitioner's ability to pay. Plaintiffs' argument that these figures 
should be revised by the court by adding back depreciation is without support." Chi-Feng Chang at 
537 (emphasis added). 
The record before the director closed on or about March 22, 2013, with the receipt by the director of 
the petitioner's submissions in response to the director's notice of intent to deny. As of that date, the 
petitioner's fiscal year 2012 federal income tax return was not yet due. Therefore, the petitioner's 
income tax return for fiscal year 2011 return would have been the most recent return available. 
However, the record does not contain the petitioner 's fiscal year 2011 tax return. The labor 
certification employer's and petitioner 's tax returns demonstrate their net income for 2008 through a 
portion of 2011, as discussed below. 
Labor Certification Employer's Net Income 
• In calendar year 2008, the Form 1120S stated net income 18 of $2,908. 
• In calendar year 2009, the Form 1120S stated net income of $28,812. 
The labor certification employer's 2009 calendar year tax returns show insufficient net 
income to 
pay the difference between the proffered wage and any wages paid to the beneficiary. As previously 
noted, however, the labor certification employer paid the beneficiary wages in 2008 which exceed 
the proffered wage . The payment of those wages may be prima facie proof of the labor certification 
employer's ability to pay the proffered wage in 2008. 
Petitioner's Net Income 19 
• In fiscal year 2009 (October 1, 2009 - September 30, 2010), the Form 1120 stated net 
income of ($145,161). 
• In fiscal year 2010 (October 1, 2010 - September 30, 2011), the Form 1120 stated net 
income of ($802,567). 
18 Where an S corporation's income is exclusively from a trade or business, USCIS considers net 
income to be the figure for ordinary income, shown on line 21 of page one of the petitioner's IRS Form 
1120S. However, where an S corporation has income, credits, deductions or other adjustments from 
sources other than a trade or business, they are reported on Schedule K. If the Schedule K has relevant 
entries for additional income, credits, deductions or other adjustments , net income is found on line 18 
(2006-2011) of Schedule K. See Instructions for Form 1120S, at http://www.irs.gov/pub/irs­
pdf/i1120s.pdf (accessed November 21, 2013) (indicating that Schedule K is a summary schedule of 
all shareholders' shares of the corporation's income, deductions, credits, etc.). Because the petitioner 
had additional income, credits, deductions and/or other adjustments shown on its Schedules K for 2008 
and 2009, the petitioner's net income is found on Schedule K of its tax returns. 
19 
The petitioner is structured as a C corporation. For a C corporation , USCIS considers net income 
to be the figure shown on Line 28 of the Form 1120, U.S. Corporation Income Tax Return. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
Therefore, for the petitioner's fiscal years 2009, the petitioner's tax returns do not state sufficient net 
income to pay the proffered wage, or the difference between any wages paid and 
the proffered wage. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS may 
review the petitioner's net current assets. Net current assets are the difference between the 
petitioner 's current assets and current liabilities. 20 A corporation 's year-end current assets are shown 
on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. 
If the total of a corporation's end-of- year net current assets and the wages paid to the beneficiary (if 
any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the 
proffered wage using those net current assets. The labor certification employer's tax returns 21 
demonstrate its end-of-year net current assets, as shown below. 
• In calendar year 2008, the Form 1120S stated net current assets of $69,986. 
• In calendar year 2009, the Form 1120S stated net current assets of $131,866. 
If the petitioner is able to establish that it is a valid successor-in-interest to the labor certification 
employer , then for the years 2008 and 2009, the labor certification employer's tax returns may state 
sufficient net current assets to pay the proffered wage. 
Therefore, if the petitioner is able to establish that it is a valid successor-in-interest to the labor 
certification employer, the petitioner may have established its and the labor certification employer 's 
ability to pay the proffered wage, based upon the labor certification employer's net current assets in 
2009, and based upon wages paid to the beneficiary in 2008, 2010 , 2011, and 2012, which exceeded 
the proffered wage. However, as discussed above, the record does not establish a successorship, and 
the petition is not currently approveable. 
Conclusion 
The director's decision that the labor certification does not require a member of the professions 
holding an advanced degree is affirmed. Beyond the decision of the director, the petitioner has not 
established whether: (1) it is a successor-in-interest to the labor certification employer; (2) the 
beneficiary is qualified for the position described on the labor certification; or (3) if a bona fide job 
existed at the time the instant petition was filed. Further, as the petitioner has not established a valid 
successorship, the petitioner has not overcome the director's decision that the petitioner failed to 
establish the ability to pay the beneficiary's proffered wage from the priority date onward. 
20 According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist 
of items having (in most cases) a life of one year or less, such as cash, marketable securities, 
inventory and prepaid expenses. "Current liabilities" are obligations payable (in most cases) within 
one year, such accounts payable, short-term notes payable , and accrued expenses (such as taxes and 
salaries). !d. at 118. 
21 
The petitioner did not submit Schedule L of its 2009 or 2010 tax returns. The partial tax returns 
submitted do not show the petitioner 's net current assets. Therefore , it cannot be determined 
whether the petitioner had sufficient net current assets to pay the proffered wage in those years. 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.